Peter Althin, the lawyer for TPB cofounder Peter Sunde, said he’s asking the Swedish appeals court to consider ordering a retrial based on the judge’s possible bias, the BBC reports.

“In the autumn I received information that a lay judge could have similar connections. I sent these to the court and the judge was excluded in order to prevent a conflict of interest. It would have been reasonable to then review this situation as well,” Althin told Sveriges Radio.

BBC also offers perspective on Swedish law from former senior attorney Sven-Erik Alhem, who says it’s unlikely this will result in – a former senior attorney in Sweden – said the judge had made an error of judgement, but a retrial was unlikely.

The judge should have told the parties of his other engagements. Had he done that then they could make a decision on whether they wanted him as a judge in their case. I’m not sure the superior court could say that this was unfair, but had he been open then it wouldn’t have been an issue.

The legalities of Swedish judicial ethics aside, this seems to me to be very bad form for a case of such public interest and import. A judicial system needs to appear — and be — independent and unbiased. That’s exactly the image the court strove to present in its very matter-of-fact comments after the decision:

The court first tried whether there was any question of breach of copyright by the file-sharing application and that has been proved, that the offence was committed…

To then find out that a judge has very definite leanings towards one party really makes a mockery of the unbiased judiciary. As Rick Falkvinge, leader of the Swedish Pirate Party, told the BBC:

“The judge in one of Sweden’s most high profile case ever is also a member of an interest organisation for one side and associates with the prosecution trial lawyers in his free time? That is inexcusable corruption.

Again, no idea what the Swedish appeals court will do, but the moral authority of the decision has been critically weakened by this revelation.

By Richard Koman

Open source licenses create a condition on the scope of the license – and thus expose violators to injunctions under copyright law – the Court of Appeals for the Federal Circuit ruled yesterday. The decision in Jacobsen v. Katzer (PDF) reverses a District Court holding that the a violation of the license (most importantly, “removal of all of the original copyright notices to the original authors and the substitution of Katzen’s company’s name,” as Mark Radcliffe described last August) was a mere contractual violation not a copyright infringement.

(The case involved model train control software; the image above is from Katzer’s bogus patent app.)

The appellate court found that Katzen’s actions were copyright violations and thus Jacobsen could seek injunctive relief, not mere money damages.
Radcliffe explains:

The CAFC noted that the Artistic License imposed its obligations through the use of the words “provided that” which is generally viewed as imposing a condition. Although the reasoning is limited to the Artistic License and the interpretation of each open source license will depend on the wording of its provisions, this decision is a welcome change to the District Court decision. The case has been remanded for the District Court to determine if the other criteria for injunctive relief have been met, but the CAFC’s decision strongly suggests that they have been met.

Lessig perhaps makes the concept clearer:

In non-technical terms, the Court has held that free licenses such as the CC licenses set conditions (rather than covenants) on the use of copyrighted work. When you violate the condition, the license disappears, meaning you’re simply a copyright infringer. This is the theory of the GPL and all CC licenses. Put precisely, whether or not they are also contracts, they are copyright licenses which expire if you fail to abide by the terms of the license.

And from the decision itself:

Copyright licenses are designed to support the right to exclude; money damages alone do not support or enforce that right. The choice to exact consideration in the form of compliance with the open source requirements of disclosure and explanation of changes, rather than as a dollar-denominated fee, is entitled to no less legal recognition. Indeed, because a calculation of damages is inherently speculative, these types of license restrictions might well be rendered meaningless absent the ability to enforce through injunctive relief.

But iParadigms argued their use of the student papers was fair use and not a copyright infringement. The District Court agreed and granted summary judgment in iParadigms’ favor.

Last week, the Fourth Circuit Court of Appeals upheld the district court’s decision. The case adds some interesting perspective on fair use doctrine.

Read the decision here

By statute, courts must consider four factors in determining if there was fair use. Here’s a look at how the court addressed each of the factors.

1. Tranformation

Despite the Supreme Court’s warning that the fourth factor, the impact on the market for the original work, is the most important factor, I would argue that it is this idea of a transformative alteration of the work that is most important as it pervades all four of the factors.

A definition is Pierre Leval’s in his Harvard Law Review article, Toward a Fair Use Standard (103 Harv. L. Rev. 1105): A transformative use is one that “employ[s] the quoted matter in a different manner or for a different purpose from
the original.”

In the TurnItIn case, this is pretty much a no-brainer: iParadigms takes student works (in this case, fictional works and poetry) and transforms them into data in a database. They don’t seek to publish them as works of art; in fact, they keep them secret in their archives. Thus the District Court found TurnItIn’s use to be “highly transformational.”

The plaintiffs argued that as a commercial use, TurnItIn is “presumptively an unfair exploitation” (citing the famous Sony decision. Importantly, the Fourth District said that it’s important not to put too much weight on commercial usage, since many otherwise fair uses happen to have a commercial aspect. (Indeed, today, every website has ads and is thus commercial.) Bottom line: Commercial use is not a presumption but a factor to be weighed in the overall context.

Another objection: TurnItIn isn’t transformative because it doesn’t add anything to the work: it just takes it, archives it, compares it. Nonsense, the court said: Transfomativeness can be in function or purpose as well as content.

Yet another: TurnItIn fails to effect its goal because in a few cases, it makes errors. Not good enough, the court said: a few isolated failures doesn’t make the system ineffective but if there were a showing of substantial failure to do what it claims to do, that would tend to weigh against this factor.

2. Nature of the Work

This factor goes to whether the work is fictional or factual (with more copyright protection given to fictional works.) The works here were fictional but this is offset by the fact that TurnItIn had no intent and in fact did not compete with the students’ abilities to sell their works (big market for high school fiction, I’m sure!) Another issue is the fact that the work was unpublished. If TurnItIn had published before the students could, that would be a strong sign of copyright infringement. But here, there was no publishing.

Score the factor as neutral

3. Amount used of the whole

At first glance this seems to go in the students’ favor, since the works were used wholesale (indeed that is the point of the service) but again, since the use is entry in a comparison database, the factor comes up neutral.

4. Effect on the Market

The test here is not “whether the secondary use suppresses or even destroys
the market for the original work or its potential derivatives,
but [upon] whether the secondary use usurps the market of the
original work.” (NXIVM Corp. v. The Ross Institute, 364 F.3d
471, 482 (2nd Cir. 2004))

This comes back to transformation. If it transformed, it hasn’t supplanted the market. Again, TurnItIn’s work doesn’t impact a student’s ability to sell her work. That is, customers might buy the original works but they won’t be dissuaded by their existence in the databse. Not the case here.

Bottom Line: Data-izing student creations is covered under Fair Use; the students’ copyright offense is over. Score one for an innovative (if Big Brotherish) use of the Fair Use Doctrine.

§ 107. Limitations on exclusive rights: Fair use

Notwithstanding the provisions of sections 106 and 106A, the fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means specified by that section, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright. In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include—

(1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
(2) the nature of the copyrighted work;
(3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
(4) the effect of the use upon the potential market for or value of the copyrighted work.

The fact that a work is unpublished shall not itself bar a finding of fair use if such finding is made upon consideration of all the above factors.

The Pirate Bay founders have been found guilty and ordered to spend a year in jail and pay a $4.5 million fine, according to the BBC.

Peter Sunde had some choice words at a pre-imprisonment press conference. Basically, the record companies won’t see a penny.

It’s serious to actually be found guilty and get jail time. It’s really serious. And that’s a bit weird. It’s so bizarre that we were convicted at all and it’s even more bizarre that we were [convicted] as a team. The court said we were organised. I can’t get Gottfrid out of bed in the morning. If you’re going to convict us, convict us of disorganised crime.

We can’t pay and we wouldn’t pay. Even if I had the money I would rather burn everything I owned, and I wouldn’t even give them the ashes.

But it was high-five time for the recording industry. IPFI head John Kennedy said:

These guys weren’t making a principled stand, they were out to line their own pockets. There was nothing meritorious about their behaviour, it was reprehensible. The Pirate Bay did immense harm and the damages awarded doesn’t even get close to compensation, but we never claimed it did. There has been a perception that piracy is OK and that the music industry should just have to accept it. This verdict will change that.